KeepAndBearArms.com --
Today is the day many of us have been waiting for. The 9th
Circuit Court refused the request for an en banc
(full court) rehearing of the Silveira
v. Lockyer lawsuit. This was highly predictable.
But the order denying the en banc hearing is far
better than any of us predicted!

SIX judges dissented --
and ALL OF THEM did so based on their correct
interpretation of the Second Amendment as an INDIVIDUAL
RIGHT!! This is the liberal 9th Circuit
Court. Furthermore, one of the dissenting judges (Kleinfeld)
offered an elaborate, detailed analysis of the Second
Amendment that contains six sections, 114 footnotes and
leaves virtually no stone unturned -- in defense of the
Truth about the right of the people to keep and bear
arms!!

“The
fundraising by KeepAndBearArms.com is essential to Silveira
v. Lockyer and has my backing 100%.”

—
Gary Gorski, Attorney for Plaintiffs, Silveira v.
Lockyer

Dissenting Judges'
Statements

All six dissenting
judges offered their reasons for believing that the Silveira
case should have been heard by the full court -- or signed
on to such statements made by other judges. As you read
this, please bear in mind that the NRA/CRPA's
attorney tried to kill this case.

Dissent
by Judge Pregerson

"...the panel misses the mark by interpreting the Second Amendment right to keep and bear arms as a collective right, rather than as an individual right. Because the panel’s decision abrogates a constitutional right, this case should have been reheard en banc."

Dissent
by Judge Kozinski

KOZINSKI,
Circuit Judge, dissenting from denial of rehearing en
banc:

Judges know
very well how to read the Constitution broadly when they
are sympathetic to the right being asserted. We have held,
without much ado, that "speech, or . . . the
press" also means the Internet, see Reno v. ACLU,
521 U.S. 844 (1997), and that "persons, houses,
papers, and effects" also means public telephone
booths, see Katz v. United States, 389 U.S.
347 (1967). When a particular right comports especially
well with our notions of good social policy, we build
magnificent legal edifices on elliptical constitutional
phrases—or even the white spaces between lines of
constitutional text. See, e.g., Compassion in
Dying v. Washington, 79 F.3d 790 (9th Cir. 1996) (en
banc), rev’d sub nom. Washington v. Glucksberg,
521 U.S. 702 (1997). But, as the panel amply demonstrates,
when we’re none too keen on a particular constitutional
guarantee, we can be equally ingenious in burying language
that is incontrovertibly there.

It is wrong
to use some constitutional provisions as springboards for
major social change while treating others like senile
relatives to be cooped up in a nursing home until they
quit annoying us. As guardians of the Constitution, we
must be consistent in interpreting its provisions. If we
adopt a jurisprudence sympathetic to individual rights, we
must give broad compass to all constitutional provisions
that protect individuals from tyranny. If we take a more
statist approach, we must give all such provisions narrow
scope. Expanding some to gargantuan proportions while
discarding others like a crumpled gum wrapper is not
faithfully applying the Constitution; it’s using our
power as federal judges to constitutionalize our personal
preferences.

The able
judges of the panel majority are usually very sympathetic
to individual rights, but they have succumbed to the
temptation to pick and choose. Had they brought the same
generous approach to the Second Amendment that they
routinely bring to the First, Fourth and selected portions
of the Fifth, they would have had no trouble finding an
individual right to bear arms. Indeed, to conclude
otherwise, they had to ignore binding precedent. United
States v. Miller, 307 U.S. 174 (1939), did not
hold that the defendants lacked standing to raise a
Second Amendment defense, even though the government
argued the collective rights theory in its brief. See Kleinfeld
Dissent at 6011-12; see also Brannon P. Denning
& Glenn H. Reynolds, Telling Miller’s
Tale: A Reply to David Yassky, 65 Law & Contemp.
Probs. 113, 117-18 (2002). The Supreme Court reached the
Second Amendment claim and rejected it on the merits after
finding no evidence that Miller’s weapon—a sawed-off
shotgun—was reasonably susceptible to militia use. See
Miller, 307 U.S. at 178. We are bound not only by the
outcome of Miller but also by its rationale. If
Miller’s claim was dead on arrival because it was raised
by a person rather than a state, why would the Court have
bothered discussing whether a sawed-off shotgun was
suitable for militia use? The panel majority not only
ignores Miller’s test; it renders most of the
opinion wholly superfluous. As an inferior court, we may
not tell the Supreme Court it was out to lunch when it
last visited a constitutional provision.

The majority
falls prey to the delusion—popular in some circles—that
ordinary people are too careless and stupid to own guns,
and we would be far better off leaving all weapons in the
hands of professionals on the government payroll. But the
simple truth—born of experience—is that tyranny
thrives best where government need not fear the wrath of
an armed people. Our own sorry history bears this out:
Disarmament was the tool of choice for subjugating both
slaves and free blacks in the South. In Florida, patrols
searched blacks’ homes for weapons, confiscated those
found and punished their owners without judicial process. See
Robert J. Cottrol & Raymond T. Diamond, The
Second Amendment: Toward an Afro-Americanist
Reconsideration, 80 Geo. L.J. 309, 338 (1991). In the
North, by contrast, blacks exercised their right to bear
arms to defend against racial mob violence. Id. at
341-42. As Chief Justice Taney well appreciated, the
institution of slavery required a class of people who
lacked the means to resist. See Dred Scott v. Sandford,
60 U.S. (19 How.) 393, 417 (1857) (finding black
citizenship unthinkable because it would give blacks the
right to "keep and carry arms wherever they
went"). A revolt by Nat Turner and a few dozen other
armed blacks could be put down without much difficulty;
one by four million armed blacks would have meant big
trouble.

All too many
of the other great tragedies of history—Stalin’s
atrocities, the killing fields of Cambodia, the Holocaust,
to name but a few—were perpetrated by armed troops
against unarmed populations. Many could well have been
avoided or mitigated, had the perpetrators known their
intended victims were equipped with a rifle and twenty
bullets apiece, as the Militia Act required here. See Kleinfeld
Dissent at 5997-99. If a few hundred Jewish fighters in
the Warsaw Ghetto could hold off the Wehrmacht for almost
a month with only a handful of weapons, six million Jews
armed with rifles could not so easily have been herded
into cattle cars.

My excellent
colleagues have forgotten these bitter lessons of history.
The prospect of tyranny may not grab the headlines the way
vivid stories of gun crime routinely do. But few saw the
Third Reich coming until it was too late. The Second
Amendment is a doomsday provision, one designed for those
exceptionally rare circumstances where all other rights
have failed—where the government refuses to stand for
reelection and silences those who protest; where courts
have lost the courage to oppose, or can find no one to
enforce their decrees. However improbable these
contingencies may seem today, facing them unprepared is a
mistake a free people get to make only once.

Fortunately,
the Framers were wise enough to entrench the right of the
people to keep and bear arms within our constitutional
structure. The purpose and importance of that right was
still fresh in their minds, and they spelled it out
clearly so it would not be forgotten. Despite the panel’s
mighty struggle to erase these words, they remain, and the
people themselves can read what they say plainly enough:

A well
regulated Militia, being necessary to the security of a
free State, the right of the people to keep and bear
Arms, shall not be infringed.

The sheer
ponderousness of the panel’s opinion—the mountain of
verbiage it must deploy to explain away these fourteen
short words of constitutional text—refutes its thesis
far more convincingly than anything I might say. The panel’s
labored effort to smother the Second Amendment by sheer
body weight has all the grace of a sumo wrestler trying to
kill a rattlesnake by sitting on it—and is just as
likely to succeed.

I
respectfully dissent from our order denying rehearing en
banc. In so doing, I am expressing agreement with my
colleague Judge Gould’s special concurrence in Nordyke
v. King,1 and with the Fifth Circuit’s
opinion in United States v. Emerson,2 both
taking the position that the Second Amendment secures an
individual, and not collective, right to keep and bear
arms.

The panel
opinion holds that the Second Amendment "imposes no
limitation on California’s [or any other state’s]
ability to enact legislation regulating or prohibiting the
possession or use of firearms"3 and "does
not confer an individual right to own or possess
arms."4 The panel opinion erases the Second
Amendment from our Constitution as effectively as it can,
by holding that no individual even has standing to
challenge any law restricting firearm possession or use.
This means that an individual cannot even get a case into
court to raise the question. The panel’s theory is that
"the Second Amendment affords only a collective
right,"5 an odd deviation from the
individualist philosophy of our Founders. The panel
strikes a novel blow in favor of states’ rights, opining
that "the amendment was not adopted to afford rights
to individuals with respect to private gun ownership or
possession,"6 but was instead "adopted to
ensure that effective state militias would be maintained,
thus preserving the people’s right to bear arms."7
It is not clear from the opinion whom the states would
sue or what such a suit would claim were they to try to
enforce this right. The panel’s protection of what it
calls the "people’s right to bear arms"
protects that "right" in the same fictional
sense as the "people’s" rights are protected
in a "people’s democratic republic."

Our circuit
law regarding the Second Amendment squarely conflicts with
that of the Fifth Circuit.8 It is inconsistent with
decisions of the Supreme Court that have construed the
Second Amendment and phrases within it.9 Our
circuit has effectively repealed the Second Amendment
without the democratic protection of the amendment
process, which Article V requires.10

The panel
decision purports to undertake historical analysis.
Historical context has its uses in understanding the
context and purposes of any law, constitutional or
legislative,11 but like legislative history, the
use of history is subject to abuse. Where the historical
scholarship is partial and tendentious, relying on it
becomes like relying on legislative history:
"entering a crowded cocktail party and looking over
the heads of the guests for one’s friends."12

Much of the
panel decision purports to be an attempt to figure out
what the word "militia" means in the Second
Amendment. But the panel’s failure to cite the
contemporaneous implementing13 statute defining the
term demonstrates the tendentiousness of its analysis. The
statute defining the militia, which in substance provides
that the "militia" consists of all adult male
citizens without regard to whether they are in any state
or federal military service, has been subsequently altered
to expand its coverage, but the federal militia statute
remains in effect.14 Besides overlooking the
statute, the panel somehow failed to notice that the
United States Supreme Court, in United States v.
Miller,15 held that the term
"militia" in the Second Amendment meant, and
means, "all males physically capable of acting in
concert for the common defense." We are an inferior
court, bound by this holding of the Supreme Court.

The panel
opinion swims against a rising tide of legal scholarship
to the contrary, relying heavily on a single law review
article that claims "keep and bear" means the
same thing as "bear," which itself means only to
carry arms as part of a military unit.16

About twenty
percent of the American population, those who live in the
Ninth Circuit, have lost one of the ten amendments in the
Bill of Rights. And, the methodology used to take away the
right threatens the rest of the Constitution. The most
extraordinary step taken by the panel opinion is to read
the frequently used Constitutional phrase, "the
people," as conferring rights only upon collectives,
not individuals. There is no logical boundary to this
misreading, so it threatens all the rights the
Constitution guarantees to "the people,"
including those having nothing to do with guns. I cannot
imagine the judges on the panel similarly repealing the
Fourth Amendment’s protection of the right of "the
people" to be secure against unreasonable searches
and seizures,17 or the right of "the
people" to freedom of assembly,18 but times
and personnel change, so that this right and all the other
rights of "the people" are jeopardized by
planting this weed in our Constitutional garden.

I.

The
Constitution with its amendments is the supreme law of
this land, not historical artifact, so we must read it,
determine what it means, and follow it, regardless of our
policy preferences. The Second Amendment to the
Constitution provides: "A well regulated Militia,
being necessary to the security of a free State, the right
of the people to keep and bear Arms, shall not be
infringed."19 To figure out what the Second
Amendment means, we should apply standard and commonly
accepted rules of statutory and constitutional
construction, such as the rule that all the words must
ordinarily be given force. The forceful language in the
operative language in the Amendment, "the right of
the people to keep and bear Arms, shall not be
infringed," is quite clear, as will be set out below.
The statement of the purpose preceding these operative
words, "A well regulated Militia, being necessary to
the security of a free State," makes the conclusion
unavoidable, once "militia" is read seriously,
that the operative words guarantee an individual right.

The panel’s
strongest argument (but not strong enough) is that the
word "bear" in the phrase "bear Arms"
"customarily relates to a military function," so
that when not acting in a military capacity, "the
people" have no right to bear Arms.20 The
military meaning is certainly among the meanings of
"bear," as is "large, heavily built, furry,
four-legged mammal," and "investor pessimistic
about the stock market." But the primary meaning of
"bear" is "to carry,"21 as when
we arrive at our host’s home "bearing gifts"
and arrive at the airport "bearing burdens." The
only way to limit "bear" to its military meaning
is to misread "militia" in the preamble as
though it meant regulars in a standing military service,
which, as shall be shown below, it emphatically does not.

Of course
one can cherry-pick dictionary definitions, just as one
can carefully select from legislative and other history.
The panel opinion cites a law review article citing the Oxford
English Dictionary, and asserts that the OED
"defines ‘to bear arms’ as ‘to serve as a
soldier, do military service, fight.’ "22 This
is correct as far as it goes,23 but it is also
misleading, because the OED says that the "main
sense"24 of "bear" is "to
carry."25 True, sense 6(a) of "bear"
in the OED is "To carry about with one, or wear,
ensigns of office, weapons of offence or defence,"26
and the OED lists among the fourth sense of
"arms," "to bear arms" — marked as
figurative by the editors — defined as "to serve as
a soldier, do military service, fight." Certainly the
phrase has often been used this way, in judicial opinions
and elsewhere. But that does not vitiate the "main
sense" of "bear": to carry. The word was
used the same way when Congress adopted the Second
Amendment. Webster’s 1828 Dictionary offers "To
support" and "To carry" as the first and
second meanings of "bear."27 If we used
the panel’s methodology, taking each word according a
right in the Bill of Rights in the narrowest possible
sense, then we would limit the freedom of
"speech" protected by the First Amendment to
oral declamations. The right of the people to
"bear" arms means, taking the word in its
ordinary sense both then and now, the right of the people
to "carry" arms, subject as all constitutional
rights are to reasonable regulation and restrictions. 28

The word
"keep" poses a much more difficult problem for
those who, like the panel, favor judicial repeal of the
Second Amendment. While "bear" often has a
military meaning, "keep" does not. For
centuries, the primary meaning of "keep" has
been "to retain possession of."29 There
is only one straightforward interpretation of
"keep" in the Second Amendment, and that is that
"the people" have the right to retain possession
of arms, subject to reasonable regulation and
restrictions.

The panel
claims that "[t]he reason why that term was included
in the amendment is not clear."30 Of course it
is not clear to those who have chosen in advance to evade
the ordinary meaning of the word. Professing mystification
by the meaning of "keep," the panel does a very
creative dance around the Founders’ language, arguing
that because "bear" means only to bear in
military service, and "keep" is used in the same
"unitary" phrase, "keep" must also be
limited to military service.31 Thus,
"keep" means no more than "bear," that
is to possess in the course of rendering service in a
state militia. The dancers eventually trip up, though,
because it is "a cardinal principle of statutory
construction that we must give effect, if possible, to
every clause and word of a statute."32 The
word "keep" must refer to something different
from the word "bear." We, the people, are
entitled by its separate meaning and the word
"and" to have it construed as giving us a right
separate from and additional to the right attached to the
word "bear." Calling the phrase
"unitary" is just a fancy way of depriving the
word "keep" of any force. One might as well say
that if someone has a right to keep and drive a car, and
dies, his estate loses the right to keep the car because
he can no longer drive it.

Colonial
statutes, as well as those more recent, used
"keep" and "bear" to mean two
different things. These statutory usages show that before,
during, and after Congress adopted the Second Amendment,
"keep" and "bear" were not used in a
"unitary" sense, nor was "keep"
limited to militia service. For instance, seamen and
others exempt from militia service were sometimes
nevertheless required to "keep" arms.33 Contemporary
legal usage in statutes, as well as the plain meaning of
the words, shows that law directed at the right or duty to
"keep" arms was distinct from duties to
"bear" arms in militia service.

II.

The most
important phrase for determining the scope of the
operative words of the Second Amendment (and the most
troublesome to the panel) is "the right of the
people." The operative words of the amendment
syntactically protect the right of "the people,"
not the "militia," to keep and bear arms.
Despite the panel’s extensive discussion of
"keep," "bear," and the preamble, it
simply skips over "the right of the people" and
attempts no direct analysis of the phrase. Marbury v.
Madison held that "It cannot be presumed that any
clause in the Constitution is intended to be without
effect; and, therefore, such a construction is
inadmissible, unless the words require it."34 Yet
the panel’s conclusion that the Second Amendment creates
no individual rights whatsoever, only a "collective
right" apparently not enforceable by anyone, requires
that this clause establishing a "right of the
people" be read as though it were "without
effect."

The
"collective rights" interpretation of the Second
Amendment, that it confers a "right" only on
state governments with respect to state militias, is a
logical and verbal impossibility in light of the phrase
"right of the people." As our Constitution is
written, governments have "powers" but no
"rights." People have both "rights"
and "powers." And the Bill of Rights carefully
distinguishes between the powers of the states and the
rights of the people, never speaking of rights of the
people when it means powers of the states.

The Tenth
Amendment expressly draws both distinctions, between
powers and rights, and between powers of state governments
and powers of the people: "The powers not
delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States
respectively, or to the people."35 The
Tenth Amendment reserves "powers," not
"rights," to the state governments, and the
Ninth preserves "rights" for "the
people." By use of the word "or," the Tenth
Amendment makes it crystal clear that "the
people" are distinct from the state governments and
hold some reserved powers that the state governments do
not. The Ninth Amendment, speaking of "rights"
rather than "powers," prohibits a construction
that would deny unenumerated "rights" to
"the people." Without it, the inference from an
express listing of rights might have been that there are
no others. The Ninth Amendment does not prohibit such an expressio
unius est exclusio alterius inference with respect to
the state governments, and the Tenth Amendment carefully
avoids sorting out which powers are reserved to the
states, and which to the people.

The Fifth
Circuit conducts this same analysis in United States v.
Emerson.36 Emerson points out that the
Constitution describes what governments exercise as
"powers" or "authority." 37 The
"legislative Powers" are vested in Congress and
the "executive Power" is vested in the
President. A "right," however, is always exercisable
by an individual. Indeed, it was not until recognition of
the corporation as a legally cognizable "person"
that the concept of an entity other than an individual
having constitutional "rights" was even
coherent, and the according of "rights" to
"corporations" was and could be accomplished
only by holding that they were "persons."38

The panel’s
holding that the right of "the people" with
respect to weapons "was not adopted in order to
afford rights to individuals"39 but only so
that "they would have the right to bear arms in the
service of the state"40 is logically absurd.
This becomes clear if one interprets the phrase "the
people" consistently, as sound construction always
requires,41 and applies the same construction to
other amendments. The First Amendment preserves "the
right of the people peaceably to assemble."42 The
panel’s construction implies that no individual can sue
in court for an abridgment of his or her right to
assemble, because the right is reserved to the people
acting collectively. The Fourth Amendment preserves
"the right of the people" to security from
unreasonable searches and seizures.

43 The
panel’s construction implies that no individual has a
right enforceable in court to be free from unreasonable
search and seizure, only "the people" as a
collective. Because "the people" act
collectively through their governments, the panel’s
logic suggests that the right to free assembly and the
right to be free from unreasonable searches and seizures
are protected only when people are acting, in the panel’s
phrase, "in the service of the state." That is
not our country.

The panel’s
interpretation is inconsistent with the decision of the
Supreme Court in United States v. Verdugo-Urquidez.44
The Supreme Court said that the phrase "the
people" "seems to be a term of art" used in
the Preamble to the Constitution ("We the
People"), Article I § 2 (members of the House are
chosen by "the People"), and the First, Second,
Fourth, Ninth and Tenth Amendments, with the same meaning
in each place. The term "the people" means
"a class of persons who are part of a national
community or who have otherwise developed sufficient
connection with this country to be considered part of that
community."45

In the usage
of the Bill of Rights, a right of "the people"
is precisely what the panel says it is not: a right of
individuals that, like their right to peaceably assemble
and to be free from unreasonable search and seizure, the
Constitution entitles them to assert against the
government.46

There is
also a collective aspect to "the people," but
hardly the government-run collective contemplated by the
panel. "We the People," when we "ordain and
establish this Constitution," 47 act through
convention, and then ratification in each state through
conventions of delegates chosen in each state by the
people. The act of "the people" in this sense
was revolutionary, replacing an old regime, the Articles
of Confederation, with a new one. And a core value
protected by the Second Amendment for "the
people" was "the Right of the people to alter or
abolish"48 tyrannical government, as they had
done a decade before. The concept had been established by
law in England as well, after its revolution from 1640 to
1660. In 1765, Blackstone explained the right of every
Englishman "of having arms for their defence"
arose from "the natural right of resistance and
self-preservation, when the sanctions of society and laws
are found insufficient to restrain the violence of
oppression."49

As
Blackstone describes the "natural right" of an
Englishman to keep and bear arms, the arms are for
personal defense as well as resistance to tyranny. The two
are not always separable. After the Civil War, southern
states began passing "Black Codes," designed to
limit the freedom of blacks as much as possible.50 The
"Black Codes" often contained restrictions on
firearm ownership and possession.51 The codes
sometimes made it a crime for whites even to loan guns to
blacks.52 A substantial part of the debate in
Congress on the Fourteenth Amendment was its necessity to
enable blacks to protect themselves from White terrorism
and tyranny in the South.53 Private terrorist
organizations, such as the Ku Klux Klan, were abetted by
southern state governments’ refusal to protect black
citizens, and the violence of such groups could only be
realistically resisted with private firearms. When the
state itself abets organized terrorism, the right of the
people to keep and bear arms against a tyrant becomes
inseparable from the right to self-defense.

III.

The Second
Amendment begins with the clause "A well-regulated
Militia, being necessary to the security of a free State .
. . ."54 Like the words "keep,"
"bear," and "the people," this
prefatory language requires a construction that accords it
independent meaning. As we shall see, far from limiting
the right of the people to keep and bear arms to their
active military service in some state-run unit, the
prefatory language compels an interpretation that protects
the right of people as individuals to keep and bear
arms.

Much of the
panel opinion addresses the meaning of the term
"militia," yet the panel fails to acknowledge
the controlling authorities that establish the meaning.
The word "militia" is a term of art, and does
not mean in the Constitution and laws of the United States
what it means in some popular and journalistic usage — a
group of ultra-right wing individuals who arm themselves
as a paramilitary force. The panel defines militia as
"the permanent state militia, not some amorphous body
of the people as a whole."55 But the law
establishes with the utmost clarity that the militia is
precisely what the panel says it is not, an
"amorphous body of the people as a whole."

The United
States Supreme Court’s decision in United States v.
Miller56 establishes the definition of
"militia" in the Second Amendment, a definition
we, as an inferior court, must apply. Miller holds
that "[t]he signification attached to the term
Militia appears from the debates in the Convention, the
history and legislation of Colonies and States, and the
writings of approved commentators. These show plainly
enough that the Militia comprised all males physically
capable of acting in concert for the common defense. ‘A
body of citizens enrolled for military discipline.’
"57 As no intervening Supreme Court decision
has altered this holding, we must proceed on the basis
that a militia is a body of citizens, comprised at least
of all males physically capable of acting in concert for
the common defense. We shall see that
"enrolled," for purposes of militia service,
means something more like being registered for the draft,
listed in the computer rolls for potential jury service,
or enrolled by social security number for payment of
taxes, than showing up at an armory for signup and
training. The panel offers no explanation (and none could
suffice) for failing to follow Miller’s
definition.

The Second
Amendment was ratified in 1791. The next year, Congress
enacted the Militia Act,58 implementing the
Amendment and incorporating the general understanding of
the time as to what the word meant, and establishing that
the militia was indeed what the panel says it was not —
an "amorphous body of the people as a whole."59
The Militia Act of 1792 defined the
"militia" as: "each and every free
able-bodied white male citizen of the respective states,
resident therein, who is or shall be of the age of
eighteen years, and under the age of forty-five
years."60 Thus, contrary to the
"collective rights" notion in the panel opinion,
the militia was precisely not "a state entity,
a state fighting force,"61 limited to those
who are active members of such a collective organization.
It was all the able-bodied white male citizens from
18 to 45, whether they were organized into a state
fighting force or not.

In the
appendix, I have reproduced the full text of this act of
the Second Congress of the United States, and the text of
section one appears in the footnote. It is worth noting a
few additional aspects of the act. First, "each and
every" "free able-bodied white male
citizen" between 18 and 45 is in the militia. Second,
each such person "shall" be enrolled by the
commanding officer and notified of his enrollment, whether
he wants to be enrolled or not.62 Most importantly,
third, the act required this "amorphous body of the
people as a whole" to arm themselves, as opposed to
the historical notion concocted by the panel that the
Second Amendment merely "preserved the right of
the states to arm their militias."63 The
key language of this enactment, contemporaneous with the
Second Amendment, is that "every citizen so enrolled
and notified shall, within six months thereafter, provide
himself with a good musket or firelock . . . or with a
good rifle."64 Each militiaman also, by
federal law, had to "provide himself"
with a bayonet, two spare flints, at least 24 cartridges
if he brought a musket or firelock, or 20 balls (bullets)
if he brought a rifle, and all sorts of other shooting
equipment denoted in the finest detail by the statute.65
The weapons, ammunition and accessories were, by
federal statute, "exempted" from all suits and
execution "for debt or for the payment of
taxes."66 Thus militiamen were entitled to
keep their weapons even if a creditor could take the rest
of their property, and even if that creditor was the
government (for unpaid taxes).

An
incidental benefit from reading this contemporaneous
implementing statute is that it makes perfectly obvious
what "well regulated" meant at the time the
Second Amendment was adopted. The panel seems to imagine
that a well regulated militia is a people disarmed until
the government puts guns in their hands after summoning
them to service. But the contemporaneous statute shows
that a well regulated militia is just the opposite, a
people who have armed themselves at least to minimal
national standards, and whom the militia officers inspect
to assure that they have not wandered in off the streets
without guns.67 The "regulat[ion]"
contemplated was not to disarm people when they were not
at militia exercises, but rather to make sure they were
armed, with their own guns. This was consistent with the
colonial pattern of laws that typically "required
colonists to carry weapons."68 Among the acts
of the crown seen as oppressions to be prevented from ever
happening again were the Militia Acts of 1757 through 1763
authorizing British officials "to seize and remove
the arms" of colonial militias when they thought it
necessary to the peace of the kingdom.69 The
American Revolution was triggered when General Gage
ordered troops to march from Boston to Lexington and
Concord to do just that.70 "[T]he Framers very
arguably rejected as basic a Weberian notion as the state’s
monopoly on legitimate violence . . . . [T]he Framers
weren’t late-twentieth-century Americans (much less
late-twentieth-century Europeans) . . . . "71 They
were the heirs of two revolutions, the English and the
American, with an altogether different worldview.

The federal
militia act promulgated immediately after the Second
Amendment was ratified assured that no state could lighten
the burden of its militia-eligible citizens, perhaps by
requiring of them only a dozen rounds of ammunition
instead of two dozen. And the militia officers had to
check to make sure all the able-bodied white male citizens
showed up when summoned, as a jury clerk does. Beyond
that, they had to conduct inspections to make sure
everyone had the firearms, bullets, bayonets, two spare
flints, quarter pound of powder, ammunition pouch, and all
the accessories the statute required of them.72 These
were the national regulations of the "well regulated
militia."

The
interpretation the panel gives to the phrase "well
regulated" makes no more sense than the
interpretation it gives to "militia." The panel
relies on a single law review article for the proposition
that the purpose of a "well regulated Militia"
is inconsistent with an individual right to own weapons.73
The law review article simply presents the author’s
opinion, as an ipse dixit, that "[The Second
Amendment] does not apply to the ‘unorganized’
militia, because that militia is certainly not ‘well
regulated’ . . . The majority in the First Congress
intended to reassure the Anti-federalists that the
national government would not disarm those who are trained
by the state militia and in that body — the ‘well
regulated Militia.’ "74 One reason this
makes no sense is that the Second Congress, consisting of
many of the same personnel as the first, described
precisely what sort of regulation they had in mind for a
"well regulated" militia, and far from requiring
that anyone with a gun be trained and supervised, they
required that all the untrained and unsupervised white
male citizens between 18 and 45 acquire and maintain guns
and ammunition. Another reason is that, as the panel
concedes, the Second Amendment was written in part to
avoid the necessity of standing armies, and protect the
citizenry against standing armies, precisely the opposite
of requiring that only members of formally organized
standing collective government organizations have guns.

Were the
modern federal statute to narrow the meaning of
"militia" to something like the organized
national guard that the panel envisions, then the
statutory meaning of the term would differ from the
meaning in the Second Amendment, and we would be bound,
for Constitutional purposes, by the broader definition
established by Miller. It would be as though
Congress defined "press" for purposes of issuing
press passes to a reserved section of the Capitol building
to mean something narrower than "press" for
purposes of the "freedom . . . of the press"
protected by the First Amendment. The new, narrower
statutory meaning would not limit the Constitutional
freedom.

We need not
parse this problem, though, because Congress has broadened
rather than narrowed the term. Today the United States
Code still defines the term "militia."75 The
modern statute, instead of narrowing the militia to an
organized body of regularly supervised and trained part
time soldiers, broadens the term. The statute
specifies that the "militia" consists not only
of the "organized" militia, consisting of the
National Guard and the Naval Militia, but also an
"unorganized militia." The "unorganized
militia" is precisely what the panel says it is not,
"an amorphous body of the people as a whole."
Now, instead of being limited to white male citizens
between 18 and 45, the militia has (of course) no racial
restriction. Non-citizens are now included, provided they
have declared an intention to become citizens. The sex
restriction is gone and females are included if they are
members of the National Guard. People become part of the
militia now at age 17 instead of 18. The only narrowing of
the statutory scope is that we are no longer required by
law to own and furnish guns, ammunition and bayonets. So
now the militia consists not only of all white male
citizens between 18 and 45, but also all able-bodied
non-white males, whether citizens or non-citizens declared
for citizenship, between 17 and 45, and all females in the
National Guard. Those of us who are male and able-bodied
have almost all been militiamen for most of our lives
whether we know it or not, whether we were organized or
not, whether our state governments supervised our
possession and use of arms or not.

Thus, as
used in law, the meaning of the word has not changed
significantly, other than to grow more inclusive. It is,
and always has been, emphatically the case that militia
members do not have to be "organized" in a
"collective" state service, because the statute
provides expressly for the existence of the
"unorganized" militia. Members of the National
Guard are in the "organized militia," and those
not in the National Guard are also in the
"unorganized militia." Various classes of
persons are exempt from militia service, most notably the
"organized fighting force," as the panel would
put it, who are active "[m]embers of the armed
forces." Thus, soldiers, as we now use the term, are
generally not in the militia, and the rest of us are.
Far from being an organized collectivity functioning as a
fighting force, the militia is like the jury pool,
consisting of "the people," limited, like the
jury pool, to those capable of performing the service for
which militias or jury pools are established. The militia
is indeed "the people," as individuals and not
as an organized collective body, and the Second Amendment
expressly prohibits government from disarming the people.

IV.

The next
analytic task is to determine how the prefatory or purpose
clause of the Second Amendment, "A well-regulated
Militia, being necessary to the security of a free
State," bears on the meaning of "the right of
the people to keep and bear Arms." The panel’s
interpretation that the Second Amendment protects only the
right of the states to arm their militias is syntactically
impossible, because the language expressly provides that
the right belongs to "the people" rather than
the states or the militias. Treating the right the Second
Amendment assigns to "the people" as a power of
the militia is even less defensible than it would be to
limit the Congressional power to grant copyrights only to
those writings that actually do "promote the Progress
of Science and useful Arts,"76 rendering The
Wizard of Oz and Steamboat Willie uncopyrightable.
The task of providing a sounder interpretation is assisted
by consideration of the historical context of the Second
Amendment, the analytic approach used by the Supreme Court
in United States v. Miller, and the practical
consequences for militia service of an armed, or disarmed,
populace.

The
historical context of the Second Amendment is a long
struggle by the English citizenry to enable common people
to possess firearms. When the Amendment was adopted, the
drafters doubtless turned to provisions in many of the
state constitutions as models.77 These provisions
themselves had models, in the tradition of common-law
lawyers copying older forms. Like many of our individual
liberties, the right to keep and bear arms was cemented
into English law in the aftermath of the English
Revolution, a little over a century before the Second
Amendment was drafted. And like many provisions of the
federal Constitution, the Second Amendment had state
constitutional models, among which justificatory preambles
were common.78

The history
that led to the drafting of the Second Amendment evolved
for centuries in England, leading to its immediate
predecessor in the English Declaration of Rights. A 1328
statute provided for forfeiture of arms and imprisonment
if they were improperly used or carried.79 A 1686
case construing that statute held that its purpose was
"to punish people who go armed to terrify the King’s
subjects,"80 apparently limiting the statute.
Of course the King’s subjects decided to quit being
subjects in the English revolution, from 1640 to 1660, and
seized for commoners rights that had previously been
limited. After the Restoration, following a long series of
grievances against James II, Parliament declared in 1689
that the English throne was "vacant."81 In
response to these grievances, and prior to offering the
throne to William of Orange and Mary, parliament drafted
the Declaration of Rights. In the debates leading up to
the passage of the Declaration of Rights, members of
parliament complained of Charles II’s and James II’s
attempts to disarm their subjects.82 Parliament
conditioned William’s and Mary’s accession upon their
acceptance of the Declaration of Rights (or Bill of Rights
as it is usually termed) of 1689.

The English
Bill of Rights, a century before ours, provided "That
the subjects which are protestants, may have arms for
their defence suitable to their conditions, and as allowed
by law."83 Since England had no states,
obviously this right of "subjects" was a right
of individuals, not of states. William Blackstone, who
wrote his Commentaries roughly 75 years after the
Declaration of Rights, provided the standard reference
work for Colonial and early American lawyers. "[His]
works constituted the preeminent authority on English law
for the founding generation,"84 and he was
"the Framers’ accepted authority on English law and
the English Constitution." 85 Because
Blackstone covered the whole of the common law in only
four easily read, highly portable, well indexed volumes,
it is easy to see why our Founders found his treatise so
useful, and copied from it as much as they did. Blackstone
explains that the right of "having" arms is
among the five basic rights of every Englishman, those
rights which serve to secure the "primary
rights."86 The right to have arms is a natural
right, in Blackstone’s view, because it arises from the
natural right of self preservation, and the right (as an
Englishman writing only a century after the English
Revolution would be mindful of) of "resistance . . .
to the violence of oppression." Blackstone wrote:
"The fifth and last auxiliary right of the subject,
that I shall at present mention, is that of having arms
for their defence, suitable to their condition and degree,
and such as are allowed by law. Which is also declared by
the same statute 1 W. & M. st. 2. c.2 [the provision
of the English Bill of Rights quoted above] and is indeed
a public allowance, under due restrictions, of the natural
right of resistance and self-preservation, when the
sanctions of society and laws are found insufficient to
restrain the violence of oppression."87 Though
Blackstone refers to the right of resistance against
oppression, his reasoning in the preceding pages is based
more on the idea that life and limb are a gift of God,
that natural liberty consists of "the right of
personal security, the right of personal liberty, and the
right of private property,"88 and that the
high value of life is what pardons homicide if in self
defense.89

The English
Bill of Rights and the Constitution’s predecessor state
constitutions based on it protected a private and
individual right to bear arms both for self defense and
for defense against oppression, as Blackstone explained.
The Second Amendment was not novel, but rather codified
and expanded upon long established principles. These
principles protected individual, not collective, rights to
keep and bear arms. And it was so understood. William
Rawle’s A View of the Constitution, published in
1829, explained "The prohibition [in the Second
Amendment] is general. No clause in the Constitution could
by any rule of construction be conceived to give to
congress a power to disarm the people. Such a flagitious
attempt could only be made under some general pretence by
a state legislature. But if in any blind pursuit of
inordinate power, either should attempt it, this amendment
may be appealed to as a restraint on both."90 Likewise,
Justice Joseph Story wrote that "The militia is the
natural defence of a free country against sudden foreign
invasions, domestic insurrections, and domestic
usurpations of power by rulers. It is against sound policy
for a free people to keep up large military establishments
and standing armies in time of peace, both from the
enormous expenses, with which they are attended, and the
facile means, which they afford to ambitious and
unprincipled rulers, to subvert the government, or trample
upon the rights of the people. The right of the citizens
to keep and bear arms has justly been considered, as the
palladium of the liberties of a republic; since it offers
a strong moral check against the usurpation and arbitrary
power of rulers; and will generally, even if these are
successful in the first instance, enable the people to
resist and triumph over them."91

Judge Thomas
Cooley, in his The General Principles of Constitutional
Law wrote "It may be supposed from the
phraseology of this provision that the right to keep and
bear arms was only guaranteed to the militia; but this
would be an interpretation not warranted by the intent.
The militia, as has been elsewhere explained, consists of
those persons who, under the law, are liable to the
performance of military duty, and are officered and
enrolled for service when called upon. But the law may
make provision for the enrolment of all who are fit to
perform military duty, or of a small number only, or it
may wholly omit to make any provision at all; and if the
right were limited to those enrolled, the purpose of this
guaranty might be defeated altogether by the action or
neglect to act of the government it was meant to hold in
check. The meaning of the provision undoubtedly is, that
the people, from whom the militia must be taken, shall
have the right to keep and bear arms, and they need no
permission or regulation of law for the purpose."92
Both Judge Cooley and Justice Story are, of course,
expressly cited as "important" commentators by
the Supreme Court’s opinion in Miller.93

As Justice
Thomas has written, "a growing body of scholarly
commentary indicates that the ‘right to keep and bear
arms’ is, as the Amendment’s text suggests, a personal
right."94 The embarrassed attitude of many of
the honest scholars who have so concluded, contrary to
their own policy preferences, is well stated by the title
of one of the seminal articles, "The Embarrassing
Second Amendment." The texts and treatises appear
generally to be moving to the view expressed in this
opinion.95

V.

What we
have, in the Second Amendment, is a prohibition against
government infringement of an individual right to keep and
bear arms, consistent with what had long been understood
to be a natural right guaranteed by the English Bill of
Rights to Englishmen. The militia clause expanded the
protection from the English Bill of Rights to emphasize
the importance of a check and balance on standing armies
in addition to the traditional English right to possess
arms for purposes of self-defense. Like any right, it is
not absolute. Just as the right to freedom of speech is
subject to limitations for defamation, threats,
conspiracy, and all sorts of other traditional
qualifications, so is the right to keep and bear arms.
Indeed, the word "infringed" in the Second
Amendment suggests that the right, such as it is, may not
be "encroached upon,"96 rather than that
it, unlike all the other rights in the Bill of Rights, is
absolute. The one thing that is absolute is that the
Second Amendment guarantees a personal and individual
right to keep and bear arms, and prohibits government from
disarming the people.

The Supreme
Court’s decision in United States v. Miller97 establishes
the method by which we must apply the Amendment’s
opening clause, "A well regulated militia, being
necessary to the security of a free state." In Miller,
two defendants tried to get an indictment for possessing a
sawed off shotgun dismissed on the basis of the Second
Amendment right to keep and bear arms. The district court
granted their motion. The Supreme Court reversed and
remanded. Miller teaches that the Amendment has the
"obvious purpose to assure the continuation and
render possible the effectiveness"98 of state
militias who would be "civilians primarily, soldiers
on occasion," 99 because of the wariness at
the time toward standing armies. The term
"militia," Miller holds, was intended in
the Second Amendment to denote substantially "all
males physically capable of acting in concert for the
common defense."100 Far from being armed by
the state governments as they found desirable, as the
panel says,101 Miller holds that "these
men were expected to appear bearing arms supplied by
themselves." 102 Miller cites
Blackstone, Adam Smith, and colonial history sources,
explaining the civilian aspect of militias, as opposed to
standing armies, and that the militia system implied not
just a right, but "the general obligation of all
adult male inhabitants to possess arms,"103 to
assist as needed in defense, and to furnish ammunition,
subject to fines if they did not possess arms.104
Many of the colonies’ laws, quoted extensively in Miller,
established minimum standards to assure that the weapons
were adequate, such as that a musket had to be at least 3’9"
long. Much as building codes today require smoke detectors
in the home, a man had to have a bullet mould, a pound of
powder, four pounds of lead, and twenty bullets, to be
produced when called for by a militia officer.105

Thus Miller
cemented in, rather than reading out, the
interpretation of the Second Amendment that I have
followed. The Amendment reflected the Founders’
hostility to standing armies, and had as its purpose
assuring the effectiveness of a civilian non-standing
militia consisting of most of the able-bodied male
population, who were expected and often required to own
their own guns. The reason that the defendants (who did
not appear on appeal106 ) lost their case was that
"In the absence of any evidence tending to
show that possession or use of a ‘shotgun having a
barrel of less than eighteen inches in length’ at this
time has some reasonable relationship to the preservation
or efficiency of a well regulated militia, we cannot say
that the Second Amendment guarantees the right to keep and
bear such an instrument. Certainly it is not
within judicial notice that this weapon is any part of
the ordinary military equipment or that its use could
contribute to the common defense."107

What is
striking about the reversal in Miller is the great
care the court took to limit its holding. Miller did
not adopt the "collective rights" notion that
only state governments as supervisors of the militia could
possess arms, though the government had urged that
interpretation on the Court in its brief.108 Miller
rejected the notion of a sawed-off shotgun as a
militia weapon. It did not reject the right of individuals
to possess arms. And Miller qualified even the
rejection of sawed-off shotguns, by limiting the holding
to a case where there was no evidence, and judicial notice
could not be taken, of any "reasonable
relationship" of sawed-off shotguns to militia use.
Had the Court been of the view that the Second Amendment
protected only the powers of the states to arm their
militias, it would have accepted that argument from the
government’s brief, and never would have reached the
issue of the relationship of sawed off shotguns to
militias.

What private
possession of arms does carry a "reasonable
relationship to the preservation or efficiency of a
well-regulated militia?" This is the question we must
ask because this is the Second Amendment test Miller construes
from the introductory clause of the Amendment. At the time
the Amendment was drafted, when states were likely to have
inadequate revenues to arm their militias, it was
necessary that those who might be useful arm themselves
with military type weapons. That is probably less relevant
today, though times can always change. But the issue of
furnishing arms for combat is not the only one involved in
militia effectiveness. An effective militia requires not
only that people have guns, but that they be able to shoot
them with more danger to their adversaries than
themselves. Standing next to a nineteen year old who for
the first time has a loaded gun in his hands is like
taking a fifteen or sixteen year old for his first driving
lesson. And if no one knew how to shoot except designated
shooters, a military supply unit of new recruits would be
as helpless as if no one knew how to drive except
designated drivers. Just as military mobility is enhanced
by near-universal civilian knowledge of how to drive,
likewise military effectiveness is promoted by widespread
civilian shooting skills (and, we shall see, Congress has
so decided and provided for civilian firearms training).

An effective
militia undoubtedly requires that a considerable portion
of the members enter it with some familiarity with gun
safety and use. Beginning in 1916, Congress provided for
the army to promote "practice in the use of rifled
arms" by giving free weapons and ammunition to
"youth-oriented organizations" and selling army
surplus weapons to adults, in an army-assisted
"Civilian Marksmanship Program." 109 In
1996, Congress created an independent federal corporation,
the first board of directors to be appointed by the
Secretary of the Army, to carry on the same program,110
which is in effect today, for "instruction of
citizens of the United States in marksmanship."111
Congress directed that the corporation "give
priority to activities that benefit firearms safety,
training, and competition for youth and that reach as many
youth participants as possible."112 Thus,
regardless of what policy preferences others might have,
the policy Congress has adopted (and re-adopted in 1996)
is to provide for a well regulated militia by putting guns
in young people’s hands and teaching them how to handle
them safely and how to shoot them.

Though the
stated justification and purpose of the Amendment relates
to the militia, the language is carefully drafted to avoid
abridging the traditional English Bill of Rights
entitlement of individuals to possess arms for self
defense. It would have, of course, been highly unlikely
that the American Revolutionaries a few years later would
have wanted to deprive Americans of rights they had always
had as Englishmen. They protected this traditional right
by attaching the "right . . . to keep and bear
Arms" to "the people," rather than
establishing it as a "power" of the states. The
English right was retained, and expanded.

Like most
serious discussions of the Second Amendment, this dissent
focuses heavily on history. Though general history, like
legislative history, cannot be used to supplant the words
of the law, it informs us of what social problem the
writers of the law intended to address.113 The
problem the Founders sought to avoid was a disarmed
populace. At the margins, the Second Amendment can be read
various ways in various cases, but there is no way this
Amendment, designed to assure an armed population, can be
read to allow government to disarm the population.

VI.

Constitutional
interpretation cannot properly be based on whatever policy
judgments we might make about the desirability of an armed
populace, or the relevance of the Amendment’s concern
with citizen militias to modern times. Those who think the
Second Amendment is a troublesome antique inappropriate to
modern times can repeal it, as provided in Article V. That
has been done before, as with legislative selection of
Senators, and with Prohibition. There is a serious
argument for its continued relevance, from those who think
that the natural right to self defense, protected by the
English Bill of Rights as well as the Second Amendment, is
still important as a matter of policy. A police force in a
free state cannot provide everyone with bodyguards.
Indeed, while some think guns cause violent crime, others
think that widespread possession of guns on balance
reduces violent crime.114 None of these policy
arguments on either side affects what the Second Amendment
says, that our Constitution protects "the right of
the people to keep and bear Arms."

Neither can
judges’ policy concerns affect our duty as a court.
Congress and the states may enact reasonable restrictions
to manage the ways in which the populace exercises its
right to keep and bear arms, just as reasonable
restrictions are imposed on our rights to free speech,
free assembly, freedom from search and seizure, and all
our other constitutional rights. What the Second Amendment
prohibits is not reasonable regulation consistent with its
purposes, but disarmament of the people. Where the
Constitution establishes a right of the people, no organ
of the government, including the courts, can legitimately
take that right away from the people. All of our rights,
every one of them, may become impediments to the efficient
functioning of our government and our society from time to
time, but fortunately they are locked in by the
Constitution against permanent loss because of temporary
impediments. The courts should enforce our individual
rights guaranteed by our Constitution, not erase them.

1319 F.3d 1185 (9th Cir. 2003).

2270 F.3d 203 (5th Cir. 2001).

3Silveira v. Lockyer, 312 F.3d 1052, 1087 (9th
Cir. 2002).

4Id. at 1056.

5Id. at 1092.

6Id. at 1087.

7Id. at 1086.

8See United States v. Emerson, 270 F.3d 203 (5th
Cir. 2001).

9See United States v. Verdugo-Urquidez, 494 U.S.
259 (1990), United States
v. Miller, 307 U.S. 174
(1939).

10U.S. Const. art. V (describing amendment procedure).

11See Portland 76/Auto Truck Plaza v. Union Oil,
153 F.3d 938, 944 (9th Cir. 1998) ("The statute and
not the legislative history tells us what solution
Congress adopted for the problem, but the legislative
history is useful to determine what the problem
was.").

41See, e.g., Dept. of Revenue of Oregon
v. ACF Indus., 510 U.S. 332, 342 (1994) (noting the
"normal rule of statutory construction that identical
words used in different parts of the same act are intended
to have the same meaning.") (quoting Sorenson v.
Secretary of Treasury, 475 U.S. 851, 860 (1986))
(internal quotations omitted).

42U.S. Const. amend. I.

43U.S. Const. amend. IV.

44United States v. Verdugo-Urquidez, 494 U.S.
259, 265 (1990).

45Id.

46The Supreme Court has not determined whether the
Second Amendment has been "incorporated" so as
to apply against the states. Some commentators suggest
that a battle over incorporation stands between the
Amendment and any right enforceable against state
legislation. See, e.g., Gil Grantmore, The
Phages of American Law, 36 U.C. Davis. L. Rev. 455,
474-75 (2003). The problem of exegesis posed by the First
Amendment, "Congress shall make no law . . . ."
is that somehow the prohibition against federal laws has
to be extended to state laws. The Second Amendment says
that "the right of the people . . . shall not be
infringed," without limiting this protection of
"the people’s" right to protection against the
federal government, so there is no verbal barrier to
incorporation as there was with the First Amendment. Since
it is plain that the First and Fourth amendments, also
protecting rights of "the people," are
incorporated against the states, it is hard to discern any
sound reason why the right of "the people" in
the Second Amendment would not be similarly
incorporated.

53Stephen P. Halbrook, That Every Man Be Armed 110-15
(2d ed. 1994). Chief Justice Taney, in contrast, had
earlier led the Supreme Court to deny citizenship to
blacks precisely because it was so unthinkable they should
have the full rights of citizenship — including the
right "to keep and carry arms wherever they
went." Dred Scott v. Sandford, 60 U.S. 393,
417 (1857).

54U.S. Const. amend. II.

55Silveira, 312 F.3d at 1072.

56United States v. Miller, 307 U.S. 174 (1939).

57Id. at 179.

58Militia Act, 1 Stat. 271 (1792).

59That contemporaneous Congressional enactments should
inform our interpretation of the Bill of Rights is well
established. See Marsh v. Chambers, 463 U.S. 783,
788-92 (1983) (in discussing the constitutionality of
opening legislative sessions with a prayer, "It can
hardly be thought that in the same week Members of the
First Congress voted to appoint and to pay a Chaplain for
each House and also voted to approve the draft of the
First Amendment for submission to the States, they
intended the Establishment Clause of the Amendment to
forbid what they had just declared acceptable.").

60Id.

61Silveira, 312 F.3d at 1070.

62CHAP. XXXIII.—
An Act more effectually to provide for the National
Defence by establishing an Uniform Militia throughout the
United States. (a)

SECTION
1. Be it enacted by the
Senate and House of Representatives of the United States
of America in Congress assembled, That
each and every free able-bodied white male citizen of the
respective states, resident therein, who is or shall be of
the age of eighteen years, and under the age of forty-five
years (except as is herein after excepted) shall severally
and respectively be enrolled in the militia by the captain
or commanding officer of the company, within whose bounds
such citizen shall reside, and that within twelve months
after the passing of this act. And it shall at all times
hereafter be the duty of every such captain or commanding
officer of a company to enrol every such citizen, as
aforesaid, and also those who shall, from time to time,
arrive at the age of eighteen years, or being of the age
of eighteen years and under the age of forty-five years
(except as before excepted) shall come to reside within
his bounds; and shall without delay notify such citizen of
the said enrolment, by a proper noncommissioned officer of
the company, by whom such notice may be proved. That every
citizen so enrolled and notified, shall, within six months
thereafter, provide himself with a good musket or
firelock, a sufficient bayonet and belt, two spare flints,
and a knapsack, a pouch with a box therein to contain not
less than twenty-four cartridges, suited to the bore of
his musket or firelock, each cartridge to contain a proper
quantity of powder and ball; or with a good rifle,
knapsack, shot-pouch and powder-horn, twenty balls suited
to the bore of his rifle, and a quarter of a pound of
powder; and shall appear, so armed, accoutred and
provided, when called out to exercise, or into service,
except, that when called out on company days to exercise
only, he may appear without a knapsack. That the
commissioned officers shall severally be armed with a
sword or hanger and espontoon, and that from and after
five years from the passing of this act, all muskets for
arming the militia as herein required, shall be of bores
sufficient for balls of the eighteenth part of a pound.
And every citizen so enrolled, and providing himself with
the arms, ammunition and accoutrements required as
aforesaid, shall hold the same exempted from all suits,
distresses, executions or sales, for debt or for the
payment of taxes.

63
Silveira,
312 F.3d at 1087 (emphasis added).

641 Stat. 271 (1792) (emphasis added).

A
musket is a shoulder gun, not necessarily rifled, named as
guns used to be after a small bird of prey. A firelock is
a flintlock, igniting the powder by flint and steel much
as a Zippo ignites lighter fluid; a rifle is a shoulder
gun with grooves in the barrel to make the bullet spin
like a football as it flies. See 5 Oxford
English Dictionary 950 (J.A. Simpson & E.S.C.
Weiner, eds. 2d ed. 1989) (firelock); 10 Oxford
English Dictionary 132 (J.A.
Simpson & E.S.C. Weiner, eds. 2d ed. 1989) (musket);
and see generally John
Olson, The Book of the Rifle, 7-9 (1974); NRA
Firearms Fact Book 33-35
(3d ed. 1989).

651 Stat. 271 (1792) (emphasis added).

66Id.

67The notion of regulation requiring rather than
prohibiting civilians to carry guns is not so antique as
this reference may be taken to imply. The previously
silent Alaska statutes were amended in 1949 to require
flyers of small planes to carry emergency equipment
including "one pistol, revolver, shotgun, or rifle,
and ammunition for the same" much as the colonial
statutes did, in order to enable the pilot to protect
against bears if the plane went down before completing its
flight. This requirement was deleted from the statute in
2001. See Alaska Stat. § 02.35.110 (current
version); ACLA § 32-6-13 (1949), amended by § 2 ch 128
SLA 1949 (adding provision requiring firearms); and § 10
ch 56 SLA 2001 (deleting that provision).

The
militia of the United States consists of all able-bodied
males at least 17 years of age and, except as provided
in section 313 of title 32, under 45 years of age who
are, or who have made a declaration of intention to
become, citizens of the United States and of female
citizens of the United States who are members of the
National Guard.

(b) The
classes of the militia are—

(1) the
organized militia, which consists of the National Guard
and the Naval Militia; and

(2) the
unorganized militia, which consists of the members of the
militia who are not members of the National Guard or the
Naval Militia

92Thomas M. Cooley, The
General Principles of Constitutional Law in the United
States of America 281-82
(2d ed. 1891) (quoted in David B. Kopel, The Second
Amendment in the Nineteenth Century, 1998 B.Y.U. L.
Rev. 1359, 1465 (1998)).

93United States v. Miller, 307 U.S. 174, 182 n.3
(1939).

94Printz v. United States, 521 U.S. 898, 938 n.2
(1997) (Thomas, J., concurring) (citing J. Malcolm, To
Keep and Bear Arms: The Origins of an Anglo-American Right
162 (1994); S. Halbrook, That Every Man Be Armed, The
Evolution of a Constitutional Right (1984); Van Alstyne,
The Second Amendment and the Personal Right to Arms, 43
Duke L.J. 1236 (1994); Amar, The Bill of Rights and the
Fourteenth Amendment, 101 Yale L.J. 1193 (1992); Cottrol
& Diamond, The Second Amendment: Toward an Afro-Americanist
Reconsideration, 80 Geo. L.J. 309 (1991); Levinson, The
Embarrassing Second Amendment, 99 Yale L.J. 637 (1989);
Kates, Handgun Prohibition and the Original Meaning of the
Second Amendment, 82 Mich. L.Rev. 204 (1983)).

95See, e.g., 1 Laurence H. Tribe, American
Constitutional Law 902 n.211 (3d. ed. 2000)
(recognizing a "right (admittedly of uncertain scope)
on the part of individuals to possess and use firearms in
the defense of themselves and their homes 8 .") and
Akhil Reed Amar, The Bill
of Rights 46-63 (1998)
(adopting individual rights view).

The error of
Hickman v. Block, 81 F.3d 98 (9th Cir. 1996), is
repeated once again, thus I respectfully dissent from
denial of rehearing en banc for the reasons stated in my
concurring opinion in Nordyke v. King, 319 F.3d
1185, 1192-98 (9th Cir. 2003) (Gould, J., specially
concurring). As I there explained, restricting the Second
Amendment to a "collective rights" view and
ignoring the individual right of the people to keep and
bear arms is inconsistent with the Second Amendment’s
language, structure, and purposes, and weakens our Nation
against recurrent internal and external threats that may
undermine individual liberty. See also United States v.
Emerson, 270 F.3d 203 (5th Cir. 2001).

“The
fundraising by KeepAndBearArms.com is essential to Silveira
v. Lockyer and has my backing 100%.”

—
Gary Gorski, Attorney for Plaintiffs, Silveira v.
Lockyer

QUOTES
TO REMEMBER

When Pa was at home the gun always lay across those two wooden hooks above the door. ... The gun was always loaded, and always above the door so that Pa could get it quickly and easily, any time he needed a gun. — Laura Ingalls Wilder

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